Welcome to Beam Australia. Below are the terms and conditions for candidates of Beam Australia. Please read the below terms carefully.
1. Commencement and term
1.1 This Agreement commences on the acceptance of these terms (by way of the Candidate ticking that they have read and agree to be bound by these terms) and may be terminated by either party at any time, in accordance with this Agreement.
1.2 Candidates may be engaged by Clients as employees or contractors. Candidates who are engaged as contractors are required to meet additional requirements which are set out in the “Contractor Supplement” at the end of these terms, and the Contractor Supplement will form a part of this Agreement.
1.3 Upon acceptance:
a) Beam Australia will commence offering the Services, the nature of which will be consistent with the Candidate Information but otherwise as determined by Beam Australia in its discretion; and
b) Beam Australia and the Candidate will do all other things reasonably required to give effect to this Agreement.
2. Candidate and Beam Australia’s Obligations
2.1 In return for Beam Australia carrying out the Services, the Candidate must:
a) co-operate with Beam Australia as it reasonably requires;
b) provide the information and documentation that Beam Australia reasonably requires, including the Candidate Information;
c) comply with the terms of this Agreement;
d) inform Beam Australia of any matter which may affect or assist the delivery of the Services;
e) act in good faith at all times towards Beam Australia;
f) notify Beam Australia, in writing, if they have been engaged by a Client or with another entity, as soon as practicable after the occurrence of the event (but no later than 48 hours of the Candidate becoming aware of the engagement);
g) keep Beam Australia informed as to the progress of engagement throughout the first 3 months of their engagement with a Client;
h) act with the utmost professionalism and courtesy towards Beam Australia and the Clients; and
i) not engage in any conduct which is detrimental to the interests of Beam Australia, would negatively affect Beam Australia’s relationship with a Client or is likely to bring Beam Australia into disrepute.
2.2 The Candidate acknowledges and agrees that all references the Candidate submits to Beam Australia may be contacted and promises that all references have given their permission to be contacted.
2.3 The Candidate must comply with all relevant laws, including those relating to taxation and work, health and safety.
2.4 Beam Australia will use all reasonable endeavours to:
a) provide the Services as required by the Candidate from time to time;
b) inform the Candidate of any matter which may affect or assist the delivery of the Services;
c) act in good faith at all times towards the Candidate and provide assistance and co-operation as practicable on the Candidate’s request; and
d) comply with all relevant laws.
2.5 The Candidate agrees that they will not accept any offer of engagement from a Client to which they were introduced by Beam Australia without first notifying Beam Australia of the same.
2.6 The Candidate acknowledges and agrees that, despite Beam Australia’s reasonable efforts to place the Candidate with a Client, there is no guarantee that any engagements will be obtained for the Candidate.
2.7 For the sake of clarity, the term “engagement” means the employment, engagement or retainment of the Candidate as an employee (whether on a casual, permanent, fixed-term or other basis), a contractor, an advisor or in any other professional capacity, and “engaged” has a corresponding meaning.
3. False and misleading information
3.1 The Candidate must not provide any false or misleading information or information which may mislead or deceive Beam Australia, Clients, or any other party.
3.2 The Candidate agrees to provide to Beam Australia with current, complete and accurate Candidate Information, including information uploaded to the Web Facilities, and agrees to maintain and update this information in a timely manner and to ensure that such information is not misleading (including by omission)and is up to date at all times. The Candidate will remain solely responsible for such information.
3.3 The Candidate must not provide any advice or professional services to any Client unless it holds all necessary qualifications and such advice is or services are provided by way of an agreement between the Candidate and the Client. For the sake of clarity, Beam Australia will not be liable for any advice or services provided by a Candidate.
4. Authorised use of Web Facilities of Beam Australia
4.1 Under no circumstances whatsoever will Beam Australia be liable to the Candidate or to any other person or entity for the Candidate’s participation in, or use of, any Web Facilities. Beam Australia has no responsibility to review or approve content uploaded to the Web Facilities by the Candidate. The Candidate is prohibited from adding any content that is unlawful, infringing or defamatory. The Candidate agrees to indemnify, defend and hold Beam Australia, its officers, directors, employees, agents and representatives harmless from and against all claims, damages, losses, costs (including reasonable legal fees), or other expenses that arise from the content it provides to Beam Australia including any content uploaded to any of the Web Facilities.
4.2 The Candidate agrees to comply with the terms and conditions of use for the Web Facilities, as amended and notified to the Candidate from time to time.
5. Interviews with Clients
5.1 The Candidate is free to accept or decline any interviews with a Client, provided however, that the Candidate may accept only those interviews:
a) that do not present a conflict of interest;
b) that relate to matters that the Candidate is permitted to discuss, under applicable law and any obligations it may owe to another party (including contractual, employment, or otherwise); and
c) that relate to potential engagements in respect of which the Candidate is knowledgeable, experienced or qualified.
5.2 The Candidate is expected to accept or decline an interview within two Business Days from the date the interview is to take place and must do so by advising Beam Australia in writing (including by email).
5.3 Unless the Candidate provides a reasonable excuse (as determined by Beam Australia), the Candidate must attend all interviews arranged by Beam Australia which the Candidate has agreed to attend. The Candidate acknowledges that this is important to Beam Australia’s reputation, and if the Candidate fails to provide a reasonable excuse, or fails to attend more than one interview, Beam Australia may terminate this Agreement by notice to the Candidate with immediate effect.
5.4 An interview may be held between the Candidate and a Client in a number of ways including face to face, over the phone, via skype or another like platform.
6. Intellectual Property
6.1 The Candidate acknowledges and agrees that Beam Australia (or its associated entities, persons or licensors) owns all Intellectual Property Rights in all content created by Beam Australia in connection with the Services, including the Web Facilities, that now exists or that later comes into existence (“Beam’s Intellectual Property”).
6.2 The Candidate must not copy, alter, reproduce or modify or in any other way interfere with Beam’s Intellectual Property.
6.3 Title in any modifications to Beam’s Intellectual Property (whether or not permitted by this Agreement or Beam Australia) immediately vest in Beam Australia and the Candidate must execute all documents required by Beam Australia to assign such title and interest to Beam Australia as and when required by Beam Australia.
7. Scope of Liability
7.1 The Services come with consumer guarantees under the Australian Consumer Law which cannot be excluded by this Agreement. Nothing in this Agreement affects the Candidate’s statutory rights as a consumer.
7.2 Subject to clause 7.1 and to the fullest extent permitted by law:
a) Beam Australia provides the Services to the Candidate on an “as is” and “as available” basis and excludes all representations, warranties or terms (whether implied or imposed by statute) other than those expressly set out in this Agreement; and
b) except as set out in clause 7.5, Beam Australia excludes all liability for any loss, damage, costs or expense, whether direct, indirect, incidental, special and/or consequential including loss of salary, earnings or profits, suffered by the Candidate or any third party, or claims made against the Candidate or any third party which result from or in connection with:
i) this Agreement;
ii) loss of revenue, profit, goodwill, reputation, opportunity, data or information arising out of the Candidate’s access and use of, or inability to access or use, the Services;
iii) Beam Australia’s failure to provide the Services or meet its obligations under this Agreement where such failure is due to events beyond Beam Australia’s reasonable control (for example, a network or third party software failure); and
iv) the Candidate’s engagement with a Client.
7.3 The Candidate acknowledges and agrees that:
a) Beam Australia does not endorse any of the Clients; and
b) whilst Beam Australia requires Clients to provide current, complete and accurate information, Beam Australia does not verify the information provided by Clients and gives no warranty that such information is current, complete or accurate.
7.4 The Candidate is responsible for:
a) conducting its own due diligence on a Client, including whether the workplace environment and culture is suitable;
b) negotiating the terms of engagement; and
c) making its own assessment as to whether it is suited to a particular engagement.
7.5 Subject to clause 7.1 and to the fullest extent permitted by law, Beam Australia’s total liability for any loss, damage, costs or expense, that you suffer or incur from using the Services is limited to Beam Australia (at its election):
a) resupplying the Services; or
b) refunding to the Candidate the amount it has paid (if any) for the Services to which their claim relates.
7.6 If Beam Australia is not able to exclude all liability except that set out in clause 7.5, subject to clause 7.1 and to the fullest extent permitted by law, its aggregate liability for all claims (howsoever arising) relating to, or in connection with, this Agreement will not exceed one hundred Australian dollars.
7.7 The Candidate will at all times indemnify and keep indemnified Beam Australia from and against any loss (including legal costs and expenses) or liability incurred by it or any of its related bodies corporate and their officers, employees and agents (“Those Indemnified”) arising from any claim, demand, suit, action or proceeding by any person against any of Those Indemnified where such loss or liability arose out of or in connection with a breach of this Agreement by the Candidate.
8.1 The parties acknowledge that each party and their respective employees or agents, may be given access to the other party’s Confidential Information in the course of performing this Agreement.
8.2 The Candidate will keep Beam Australia’s Confidential Information confidential and will not disclose it to any third party or use it other than:
a) for the purposes of this Agreement;
b) as authorised in writing by Beam Australia;
c) as required by any law, judicial body or governmental agency; ord) by way of disclosure to its professional advisors who have agreed to keep the Confidential Information confidential.
8.3 Beam Australia will keep the Candidate’s Confidential Information confidential and will not disclose it to any third party or use it other than:
a) for the purposes of, or as authorised by, this Agreement;
b) for the purposes of performing the Services, including publishing the Confidential Information on any websites or portals of Beam Australia or third party websites or portals for the purpose of enabling the Services to be appropriately provided to the Candidate;
c) as required by any law, judicial body or governmental agency; or
d) by way of disclosure to its professional advisors who have agreed to keep the Confidential Information confidential.
8.4 The parties will not copy any document containing the other party’s Confidential Information except as necessary to perform the Services or as is required by this Agreement.
8.5 On termination of this Agreement, each party will return to the other party, permanently delete or destroy, (at the other party’s election and absolute discretion) all documents or copies of documents containing information which at the date of termination is or is derived from the other party’s Confidential Information.
8.6 Each party will ensure that its employees, agents, contractors and other persons within its control comply with this clause 8, as if named as that party and bound hereto.
9. Term and Termination of Agreement
9.1 Beam Australia may terminate this Agreement at any time and for any reason upon giving the Candidate one weeks’ written notice. Beam Australia may suspend the Services at any time and for any reason upon giving the Candidate one weeks’ written notice.
9.2 The Candidate may terminate this Agreement by giving Beam Australia two weeks’ written notice.
9.3 The termination of this Agreement is without prejudice to any rights which have accrued to a party before the date of termination.9.4 Clauses 6, 7, 8, 11, 12, 13, 14 and 15 survive the termination of this Agreement
10.Nature of relationship
10.1 This Agreement does not create an employment, contractor, labour hire or agency relationship between the parties.
10.2 The parties may not enter into any agreements or incur any liabilities on behalf of the other party without the other party’s prior written consent and may not represent to any person that it has any authority to do so.
10.3 The Candidate acknowledges and agrees that Beam Australia provides an intermediary service only and Beam Australia is not a party to and will not have any liability with respect to any arrangements between it and a Client.
11.Conflicts and no solicitation
11.1 For so long as the Candidate is:
a) registered with Beam Australia and for 12 months after any such registration ceases or after the termination of this Agreement, whichever occurs later; and/or
b) engaged by a Client introduced to the Candidate by Beam Australia (including by providing information to the Candidate regarding a Client, enabling the Candidate to identify a Client or otherwise causing a Client to be introduced to the Candidate),the Candidate must not be engaged by a Client without the written consent of Beam Australia.
11.2 The Candidate understands that it must use the Services of Beam Australia as its exclusive method to engage with a Client unless Beam Australia agrees otherwise (in writing) and Beam Australia is paid the appropriate fees as stipulated in this Agreement (or as otherwise agreed in writing between Beam Australia and the Client).
11.3 The Candidate must immediately upon being engaged by a Client in a manner contemplated in clause 11.1 above notify Beam Australia writing.
11.4 The Candidate must have no further contact with Clients (whether by call, text, email or otherwise) if the Client declines to engage the Candidate after one or more interviews. The Candidate must not call, text or email a Client without written consent from Beam Australia. At no time may the Candidate solicit work from Clients during the term of this Agreement and for 12 months thereafter without the express written consent of Beam Australia.
12.1 Notices given under this Agreement must be in writing, signed by the party giving the notice and addressed to the “Notice Address” of the person to whom it is to be given (“Notice”).
12.2 The “Notice Address” of Beam Australia is Suite 601, Level 6, 55 Clarence St, Sydney NSW 2000 and [email protected] and the Notice Address of the Candidate is the address and email provided by the Candidate upon registration for the Services, as updated by the Candidate via the Web Facilities from time to time.
12.3 Notices must either be delivered by hand, posted by pre-paid security or certified mail, or transmitted by email, to the Notice Address of the person receiving the Notice.
12.4 A Notice given to a person in accordance with this Agreement is deemed to have been given and received if:
a) delivered, on the day of delivery if delivered before 5:00 pm on a Business Day, otherwise on the next Business Day;
b) posted by pre-paid security mail or certified mail, on the second day after the day on which the Notice was accepted by the post office from the party sending the Notice;
c) transmitted by email, upon receipt by the recipient email server (even if received or categorised or filtered as unwanted email or spam), unless the sender receives an automated notice that delivery has failed.
13.1 Beam Australia may modify the terms and condition of this Agreement from time to time by posting the modification(s) or updating these terms and conditions on its Web Facilities or by emailing the Candidate. Unless otherwise specified when posted or emailed, all modifications will be effective upon posting or emailing. If the Candidate does not agree to any modification(s), the only recourse available is to terminate their use of the Services within 7 days of the modification(s).
13.2 If the Candidate terminates their use of the Services due to any modification, the Candidate will be released from the non-solicitation in clause 11.1.
13.3 If the Candidate continues to participate in receiving the Services under this Agreement after any modification becomes effective, then subject to clause 13.2 such participation will constitute acceptance of such modification.
13.4 This Agreement supersedes all previous agreements and understandings about its subject matter and embodies the entire agreement between the parties. To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion has no effect except to the extent expressly set out in this Agreement.
13.5 Each party to this Agreement must do all things and sign, execute and deliver all deeds and other documents as may be legally necessary or reasonably required of it by Notice from another party to carry out and give effect to the terms and intentions of this Agreement and to perfect, protect and preserve the rights of the other parties to this Agreement.
Governing law and jurisdiction
13.6 This Agreement is governed by, and construed in accordance with, the laws of New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of its courts and the courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.
13.7 The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.
13.8 A right under this Agreement may only be waived in writing signed by the party granting the waiver and is effective only to the extent specifically set out in that waiver.
13.9 If the whole or any part of a provision of this Agreement is invalid or unenforceable in a jurisdiction it must, if possible, be read down for the purposes of that jurisdiction so as to be valid and enforceable. If however, the whole or any part of a provision of this Agreement is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
The meanings of the terms used in this Agreement are set out below.
Australian Consumer Law
means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
means Beam Australia Operations Pty Ltd (ACN 615 709 067) of 48 Brae St, Bronte NSW 2024.
means a day other than a Saturday, Sunday or public holiday, in Sydney, New South Wales.
means a person who is entering into this Agreement with Beam Australia for the purpose of seeking an engagement with a Client.
means information regarding the Candidate that includes information regarding their skills and qualifications, previous employment/experience, references, resume, criminal history and any other information relevant to the Candidate that Beam Australia deems relevant to the provision of the Services.
means a client of Beam Australia or a person in discussions with Beam Australia about becoming a client of Beam Australia.
means all trade secrets, ideas, know-how, concepts and information whether in writing or otherwise relating in any way to that party’s affairs, including: (a) in relation to both parties: (i) affairs or businesses, sales, marketing or promotional information; (ii) the Candidate Information; (iii) the terms of this Agreement; and (b) in relation to Beam Australia: (i) the Services (including the affairs or businesses, sales, marketing or promotional information of each Client); or (ii) Intellectual Property Rights, but does not include information that is, or becomes part of, the public domain otherwise than by breach of this Agreement by either party, is lawfully obtained by either party from another person without any restriction as to use and disclosure, or was in the party’s possession prior to disclosure of it by the other party.
Intellectual Property Rights
means any and all registered and unregistered present and future intellectual and industrial proprietary rights throughout the world including rights in respect of or in connection with: (a) any Confidential Information; (b) copyright; (c) inventions (including patents); (d) trade marks or service marks; and (e) designs; and includes any right to apply for the registration of such rights and includes all renewals and extensions.
to the extent that it is able to do so, means the practice of providing Clients with the Candidate Information with the view to securing an engagement for the Candidate with a Client.
means any webpages/websites, portals, online hubs and any other like web-based platforms of Beam Australia.
In this Agreement:
a) a singular word includes the plural and vice versa;
b) a word which suggests one gender includes the other gender;
c) a reference to a clause, schedule, annexure or party is a reference to a clause of, and a schedule, annexure or party to, this Agreement and references to this Agreement includes any schedules or annexures;
d) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
e) a reference to a document or agreement (including a reference to this Agreement) is to that document or agreement as amended, supplemented, varied or replaced;
f) a reference to ‘month’ means calendar month;
g) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; and
h) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it.
END OF TERMS AND CONDITIONS OF AGREEMENT FOR CANDIDATES
16. Candidate obligations
16.1 Where the Candidate has entered into a formal arrangement with a Client to provide services (“Client Services”), the Candidate must:
a) have an ABN;
b) if applicable, be registered for GST;
c) comply with all applicable laws and regulations;
d) comply with the terms of the agreement with the Client;
e) unless otherwise agreed with the Client, supply its own equipment, plant and tools;
f) take full responsibility for the testing and tagging of its own equipment;
g) provide, maintain and keep in good order all of the necessary equipment that is reasonably necessary for the provision of the Client Services;
h) conduct itself in a manner that does not bring Beam Australia or the Client into disrepute;
i) never be intoxicated or under the influence of illegal substances or substances that adversely affect the performance of the Client Services;
j) immediately disclose any perceived or actual loss or damage arising out of the performance of the Client Services including the need to perform rectification work;
k) adhere to the Client’s workplace health and safety standards and procedures as varied and notified by the Client to the Candidate from time to time;
l) not knowingly do or permit anything to be done or omit to do anything which may cause a Client to breach its own work health and safety obligations;
m) not improperly disclose or use any confidential information of the Client;
n) possess all qualifications, skills, experience, permits, licences and registrations required to perform the Client Services (“Required Qualifications”);
o) provide, upon request by either Beam Australia or the Client, evidence of the Required Qualifications;
p) immediately notify Beam Australia and the Client of any material variations made to the Required Qualifications;
q) effect and maintain adequate insurance policies, including policies for professional indemnity, public liability and workers compensation, for the performance of the Client Services and any additional policies or higher standards as required by the Client (“Required Policies”) and provide, upon request by either Beam Australia or the Client, certificates of currency of the Required Policies;
r) not knowingly do or permit anything to be done or omit to do anything which may in any way invalidate or violate the conditions of any of the Required Policies, or increase or cause to be increased, the premiums payable; and
s) ensure that Beam Australia and the Client have agreed in writing prior to any advertising or marketing being undertaken by the Candidate which includes or associates Beam Australia with the Candidate.
16.2 Where the Candidate’s officers, employees, agents or representatives are involved with the performance of the Services (“Candidate Personnel”), the Candidate must ensure that the Candidate Personnel, to the extent applicable, comply with each of the obligations in clause 16.1 as if bound as the Candidate.
17.1 Candidates are required to agree:
a) fees and charges; and
b) invoice and payment terms, with the Client directly.
17.2 Candidates are responsible for invoicing the Client for the agreed fees and charges, and Beam Australia will not:
a) be liable for any of the Candidate’s invoices to a Client; or
b) responsible for or be involved in recovering outstanding payments from a Client.
17.3 At the end of each calendar month, the Candidate must provide a statement to Beam Australia detailing the invoices rendered for Client Services provided in that month.
17.4 If there is a dispute between the Candidate and Client in relation to the payment of invoices, the Candidate must provide Beam Australia with regular updates in relation to the dispute.
18. Further indemnity
18.1 In addition to the indemnity given under clause 7.5, the Candidate will at all times indemnify and keep indemnified Beam Australia from and against any loss (including legal costs and expenses) or liability incurred by it or any of Those Indemnified arising from:
a) any claim, demand, suit, action or proceeding by any person against any of Those Indemnified where such loss or liability arose out of or in connection with (i) a breach of this Agreement by the Candidate or any of the Candidate Personnel, including a breach of its obligations in clause 16.1, or (ii) any wilful, unlawful or negligent act or omission of the Candidate or any of the Candidate Personnel in connection with the provision of the Client Services;
b) any tax or statutory charge which may be levied or charged or which may fall due to be levied or paid in relation to any fees payable to the Candidate by any Client or for any other sum payable by Beam Australia as a consequence of the performance or non-performance of the Candidate; and/or
c) any tax deductions, leave entitlements or liabilities that the Australian Commissioner of Taxation or Fair Work Ombudsman may seek to recover from Those Indemnified in respect of all and any fees which a Client pays to the Candidate or which are otherwise owing to the Candidate’s Personnel.
18.2 The indemnities referred to in this clause will survive the expiration or termination of this Agreement.